**UPDATE: Since this article was published on May 26th, there have been further developments with San Francisco's sugary drinks advertising law. On June 8th, a federal judge put the ordinance on hold, while the beverage industry appeals the ruling from May 17th. This means the law is not likely to go into effect on July 25, 2016, as previously reported. Stay tuned for further news about this case and implementation of the law.
Last year, San Francisco’s Board of Supervisors enacted a city law that requires advertisements for sodas and other sugary drinks to carry a warning label. However, the beverage and advertising industries pushed back by filing a lawsuit against the city to block the law from taking effect. On May 17, 2016, U.S. District Judge Edward Chen denied the industries’ request for a preliminary injunction to stall the ordinance.
To help us understand the ruling and what this means for San Francisco’s soda warning label law, we’ve tapped the expertise of Sabrina Adler, a Senior Staff Attorney at ChangeLab Solutions, for a Q & A…
Question 1: Can you briefly explain what San Francisco’s soda warning label law will do? Where and when can consumers expect to see the changes in the city?
SA: The ordinance, which will go into effect on July 25, 2016**, requires all sugary drink ads on signs, billboards, or posters to include the following statement: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.” The warning must occupy at least 20% of the total area of each ad and must be clearly legible. The requirement does not apply to ads on television or the internet, or in periodicals, because in many cases the city does not have jurisdiction over those types of ads. Consumers should start to see the warnings on billboards, on posters on public transit and in transit stations, on storefront advertising, and on other similar fixed-location print ads within San Francisco over the summer.
Question 2: The American Beverage Association, the California Retailers Association, and the California State Outdoor Advertising Association have challenged this law. What were their grounds for filing a lawsuit against the City?
SA: These industry groups filed a lawsuit claiming the ordinance was a violation of their constitutional rights. Specifically, they argued that the law should be struck down under the First Amendment, which guarantees freedom of speech. Most people think of the First Amendment as preventing the government from restricting speech, but in certain instances it also prevents the government from requiring you to speak against your will. Because this warning requirement requires beverage companies and advertisers to add speech, in the form of a warning, to their ads, they claimed their First Amendment rights would be violated. They also argued that they would, in effect, be forced to stop advertising in San Francisco as a result of the law, and that they were being targeted unfairly, since the law doesn’t apply to many other sugary products, like candy and baked goods.
Question 3: What was Judge Chen’s ruling in the case last week?
SA: Simply stated, the Judge ruled that the law did not violate the industry groups’ First Amendment rights. Though the First Amendment does come into play when speech is required against one’s will, he stated that the warning required here is factual and accurate, and that the requirement of such speech is a reasonable way for the city to address an important public health problem. He also found that the industry groups were unlikely to stop advertising in San Francisco, and that it was reasonable for the city to single out sugary drinks as a major source of calories and sugar, even if other products may also be harmful. He did, however, note some concern about the size of the warnings and whether that would be too large a burden on the advertisers (20% of the total area), but thought that the industry was unlikely to prevail in their lawsuit regardless of that concern.
Question 4: Given the judge’s ruling, what happens next? Have the industry groups indicated if they will continue to challenges the law?
SA: This ruling is just end of the very first stage. The industry groups had sought what is called a preliminary injunction, which means they wanted to stop the law from taking effect in July while the case moved forward in the court. In reviewing the request for an injunction, Judge Chen’s task was to determine whether the industry was likely to win the case in the long run. He found that they were not likely to win, which is why he denied the injunction. The industry will likely appeal the denial, which means a higher court (in this case the Ninth Circuit Court of Appeals) will review this decision. It’s also possible they will give up on the preliminary injunction, thus letting the law go into effect in July, and instead will argue further in front of Judge Chen, for example by arguing that the 20% requirement will in fact unduly burden the advertisers by suppressing their messages in favor of the message in the warning.
Question 5: Do you think this ruling on San Francisco’s law on soda ad warning labels provides momentum for other cities to pursue similar measures?
SA: There’s likely a long road ahead in this case, but Judge Chen’s initial ruling is very favorable for San Francisco and for proponents of sugary drink warnings more generally. There were copious amounts of evidence – on the science of sugary drink consumption, on the effectiveness of warnings, etc. – submitted in this case, and having considered it all the judge very clearly stated that requiring such a warning is a “legitimate action to protect public health and safety.” This provides a strong basis for other cities to take similar action. Of course, it’s impossible to predict whether other judges would rule in exactly the same way, but there is a lot that is positive about this opinion and that should be heartening for advocates of sugary drink warnings in San Francisco and around the country.